# Sears v. Bayoud

> Texas Supreme Court · February 14, 1990 · 33 Tex. Sup. Ct. J. 228

URL: https://www.frixlaw.com/law-library/cases/9762594

## Case

- **Full name:** Ross SEARS, Relator, v. George BAYOUD, Secretary of State of the State of Texas, Et Al., Respondents
- **Court:** Texas Supreme Court
- **Decided:** February 14, 1990
- **Citations:** 33 Tex. Sup. Ct. J. 228; 786 S.W.2d 248; 1990 Tex. LEXIS 15; 1990 WL 11836
- **Precedential status:** Published
- **Opinion:** On the merits
- **Judges:** Gonzalez, Spears, Phillips, Cook, Hecht
- **Cited by:** 37 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9762594

## How later opinions describe it (automated extraction)

- discussing the duration of an attorney’s admission to the State Bar of Texas in terms of eligibility

## Opinion text

MERITS
Sears contends that McCorkle is ineligible to serve as a justice of the Supreme Court of Texas under article V, section 2 of the Texas Constitution, which provides in part:
No person shall be eligible to serve in the office of Chief Justice or Justice of the Supreme Court unless the person is licensed to practice law in this state and is, at the time of election, a citizen of the United States and of this state, and has attained the age of thirty-five years, and has been a practicing lawyer, or a lawyer and judge of a court of record together at least ten years.
Tex. Const. art. V, § 2 (Vernon Supp.1990) (emphasis added).
All parties agree that on the date of the general election, McCorkle will be several days short and will not have been “a practicing lawyer, or lawyer and judge of a court of record together at least ten years.” 2 Pursuant to Texas Election Code, section 41.002 (Vernon 1986), the 1990 general election of justices for the Supreme Court of Texas is to be held on November 6, 1990. The official records of the Supreme Court of Texas establish that McCorkle was licensed to practice law in Texas on November 24, 1980. The records of the Board of Law Examiners of the Supreme Court of Texas reflect that the November 1980 candidates for licensure, including McCorkle, were not certified to the supreme court as eligible for licensing until November 17,1980. McCorkle argues that the true and correct copy of his oath of office, attached to the back of his license, indicates that he took the oath of office on November 10, 1980. Even so, McCorkle will not have been “a practicing lawyer, or a lawyer and judge of a court of record together at least ten years” at “the time of election.” By the most favorable reading, McCorkle will miss eligibility by a matter of a few days. Nonetheless, a candidate is either eligible or he is not. Application of the rule of de minimis non curat lex 3 would sacrifice the mandate of article V, section 2 of the constitution in favor of expediency.
Thus, the issue to be resolved is whether article V, section 2 of the Texas Constitution requires a candidate for the Supreme Court of Texas to have been a lawyer for at least ten years at the time of the election or at the time the candidate would assume office. Sears argues that the phrase “at the time of election” modifies each of the subsequent requirements in article V, section 2 that the candidate: (1) be “a citizen of the United States and of this State;” (2) have “attained the age of thirty-five years;” and (3) have “been a practicing lawyer, or a lawyer and judge of a court of record together at least ten years.” *251 McCorkle argues that the phrase “at the time of the election” modifies only the requirement that a candidate be “a citizen of the United States and of this state.”
We have repeatedly recognized the principle that constitutional provisions which restrict the right to hold public office should be strictly construed against ineligibility. Brown v. Meyer, 787 S.W.2d 42 (Tex.1990); Hall v. Baum, 452 S.W.2d 699, 702 (Tex.1970), appeal dismissed, 397 U.S. 93 , 90 S.Ct. 818 , 25 L.Ed.2d 79 (1970); Willis v. Potts, 377 S.W.2d 622, 623 (Tex.1964). However, “[t]he Texas Constitution derives its force from the people of Texas. This is the fundamental law under which the people of this state have consented to he governed.” Edgewood Independent School District v. Kirby, 777 S.W.2d 391, 394 (Tex.1989). Accordingly, in construing a constitutional provision, this Court has always given effect to the intention of the framers and ratifiers of the provision. See Id., at 394-95 ; Deason v. Orange County Water Control Improvement District No. One, 151 Tex. 29 , 244 S.W.2d 981, 984 (1952); Koy v. Schneider, 110 Tex. 369 , 218 S.W. 479, 481 (1920).
The delegates to the Constitutional Convention of 1875 were the initial drafters of article Y, section 2. There were no eligibility requirements for supreme court justices in the 1845 and 1861 Texas Constitutions. See Tex. Const. art. IV, § 2 (1845); Tex. Const. art. IV, §§ 2-5 (1861). Similarly, the Reconstruction Constitution of 1869 provided that the justices “shall be appointed by the Governor,” and contained no eligibility requirements. See Tex. Const. art. V, § 2 (1869). In the 1866 Constitution, however, article IV, section 2 required that a Supreme Court Justice “shall have arrived at the age of thirty-five years at the time of election.” Tex. Const. art. IV, § 2 (1866). Article IV, section 2 of the 1866 Constitution is the basis of article V, section 2 of the 1876 Constitution. At the Constitutional Convention of 1875, several delegates proposed differing eligibility requirements of supreme court justices, each of which had to be met at the time of the election, 4 Notwithstanding the Respondents’ arguments concerning proper grammatical construction, 5 we believe that the *252 delegates to the 1875 Constitutional Convention intended article V, section 2 to have three requirements, each of which were to be met “at the time of [the] election,” rather than at the time of taking office. The subsequent amendments to article V, section 2 changed only the requirements themselves, not the time when they are to be satisfied. 6 Therefore, we hold that article V, section 2 requires a candidate for the Supreme Court of Texas to have been a practicing lawyer, or a lawyer and judge of a court of record together at least ten years at the time of the election.
We are not writing on a clean slate; our holding today is consistent with the conclusion previously reached by every Texas court that has interpreted this constitutional provision. In Purcell v. Lindsey, 158 Tex. 541 , 314 S.W.2d 283 (1958), this court confronted the issue of eligibility for election to the Court of Criminal Appeals in an original mandamus action. The question presented was whether the applicant, Graham Purcell, satisfied the requirement that he have been a practicing lawyer for at least ten years as required by article V, section 2. In a unanimous opinion, we stated:
It would appear that in 1945 when the people of Texas, acting in their sovereign capacity in fixing the fundamental law of the state by constitutional amendment decided that “no person shall be eligible to the office of Chief Justice or Associate Justice of the Supreme Court unless he ... shall have been a practicing lawyer and judge of a court of record together at least ten years,” ... they prescribed in definite terms that from and after the effective date of the 1945 amendment, a judge ... must “have been a practicing lawyer or a lawyer and judge of a court of record together (for) at least ten years” prior to the date of his election.
Id. 314 S.W.2d at 286 (citations omitted) (emphasis added). Applying the provision as it related to candidates for the Court of Criminal Appeals, 7 we interpreted article V, section 2 as requiring that a candidate must have been a lawyer for at least ten years prior to the date of the election. Id. Three appellate courts have followed our interpretation in Purcell . In Kothmann v. Daniels, 397 S.W.2d 940 (Tex.Civ.App.—San Antonio 1965) (orig. proc.) (per curiam), the court stated in dicta:
*253 Our conclusion is further supported by the fact that the framers of the Texas Constitution of 1876, when they intended that the conditions of eligibility must exist as of the date of the election, expressed such intention in clear and plain language. Thus, Art. V, § 2, which provides that no person “shall be eligible to the office of Chief Justice or Associate Justice of the Supreme Court” unless he possesses certain qualifications, explicitly recite that the candidate must possess such qualifications “at the time of his election.’’ See Purcell v. Lindsey, 158 Tex. 541 , 314 S.W.2d 283 (1955).
Id. at 943 (emphasis added).
In McClelland v. Sharp, 430 S.W.2d 518 (Tex.Civ.App.—Houston [14th Dist.] 1968) (orig. proc.) (per curiam), the court denied a writ of mandamus concerning the eligibility of a candidate for the Texas legislature. In concluding that the courts should not “adopt a rule which would require party officials to certify a candidate which the public records show not to be qualified for the office he seeks,” 430 S.W.2d at 522 , the court discussed Purcell , stating:
In Purcell v. Lindsey, ... [t]he Supreme Court held that the relator was required to be a practicing lawyer for ten years in order to be qualified for the office he sought and that the committee’s refusal to certify him because he was not licensed to practice law, according to the records of the Supreme Court, until a date less than ten years before the date in which the general election was to be held, was proper.
Id. at 521-22.
In State by Reyna v. Goldberg, 604 S.W.2d 549 (Tex.Civ.App.—Waco 1980, orig. proceeding), the unanimous court, without citing Purcell , reached the identical conclusion — the date of the general election controls the eligibility requirements within article V, section 2. The court held that Michael J. McCormick was eligible for the Court of Criminal Appeals, stating:
The precise question we are called upon to determine is whether or not Michael J. McCormick, as of Tuesday, November 4, 1980, the date of the General Election, will have been for at least ten years prior thereto a “practicing lawyer” within the meaning of the constitutional provision hereinabove quoted. We are of the opinion and hold that this record amply establishes that Mr. McCormick has been a practicing lawyer continuously from and after September 18, 1970, the date he received his law license, until the time the case was tried (August 8 through 11, 1980), and at the time of trial he was engaged in employment and work which would qualify him as a practicing lawyer until November 4,1980, the date of the General Election.
Id. at 550-51 (emphasis added).
Our court’s interpretation of article V, section 2 in Purcell is sound and persuasive.
As the Republican Party Chairman, Meyer is required to “certify in writing for placement on the general primary election ballot the name of each candidate who files” with him an application for candidacy. See Tex.Elec.Code § 172.028(a) (Vernon 1986). Pursuant to sections 145.003(c) and 145.003(f)(2) of the Texas Election Code, Meyer may declare a candidate “ineligible before the beginning of absentee voting” for the primary election if “facts indicating that the candidate is ineligible are conclusively established by another public record.” See Tex.Elec.Code §§ 145.-003(c) & 145.003(f)(1) (Vernon 1986). Meyer is also required to review the application McCorkle filed for a place on the ballot to determine whether it complies with the requirements as to form, content, and procedure. Tex.Elec.Code Ann. § 141.032(a) (Vernon 1986). The contents of the application form are prescribed by the Secretary of State and require McCorkle to swear that he is “eligible to hold the [supreme court] office under the Constitution and the laws of this state.” As set forth above, McCorkle is not qualified under the constitution of this state to hold the office for which he applied. Thus, Meyer, pursuant to section 141.032(e), “shall reject the application and immediately deliver to the candi *254 date written notice of the reason for the rejection.” Meyer’s prior determination that the application complies with the applicable requirements does not preclude a subsequent determination that the application does not comply. See TEX.ELEC.CODE ANN. § 141.032(d). As pointed out by Sears, an application for a place on the ballot may not be challenged as to form or procedure later than the day before the beginning of absentee voting. See TEX.ELEC.CODE ANN. § 141.034.
As previously stated, the pertinent official records of the Supreme Court of Texas and of the Board of Law Examiners of the Supreme Court of Texas are public records. They establish that McCorkle is ineligible. Meyer may not ignore these facts; he must declare McCorkle ineligible. See Hayes v. Harris County Democratic Executive Committee, 563 S.W.2d 884, 885 (Tex.Civ.App.—Houston [14th Dist.] 1978, no writ). Section 145.003(g) of the Texas Election Code provides:
If a candidate is declared ineligible after the deadline for omitting an ineligible candidate’s name from the ballot, the authority making the declaration [of ineligibility] shall promptly certify in writing the declaration of ineligibility to the canvassing authority for the election.
Tex.Elec.Code § 145.003(g) (Vernon 1986).
Because McCorkle is an ineligible candidate in the 1990 race for Justice, Place 2, Supreme Court of Texas, the petition for writ of mandamus is conditionally granted. The writ will not be issued unless Meyer fails to notify the Clerk of this court, in writing, by 10:00 a.m. on February 20, 1990, that he has rejected McCorkle’s application, delivered to McCorkle written notice of the reason for rejection, and certified in writing a declaration of ineligibility to the canvassing authority for the election. We decline to issue a mandamus ordering Meyer to remove McCorkle’s name from the primary ballot. See TEX.ELEC.CODE § 172.058(a) (Vernon Supp.1990). 8
Further, we also deny Sears’ request to order the Secretary of State not to certify McCorkle. The Secretary of State does not have the duty to certify names on the ballot for the primary. His duty is to certify names for the general election to be held in November. Therefore, the controversy as to the Secretary of State is not ripe, and no relief is granted against the Secretary of State at this time.
Because of the proximity of the date for commencement of absentee balloting, a motion for rehearing will not be entertained. Tex.R.App.P. 190(a).
SPEARS, J., dissents, joined by PHILLIPS, C.J., COOK and HECHT, JJ.
. Justice Cook, in his dissenting opinion, asserts that McCorkle is eligible because a candidate is not officially "elected” until the final canvassing authority for the election completes the canvass for the office. See TEX.ELEC.CODE ANN. § 221.005. This novel construction of the election code is unsupported by any authority and is inapposite since Article V, section 2 of the constitution requires a candidate to be eligible on the day of election, not at the time a candidate is certified as having been elected. See State by Reyna v. Goldberg, 604 S.W.2d 549, 550 (Tex.Civ.App.—Waco 1980) (orig. proc.) (issue is whether qualifications met as of the date of the general election).
.The law does not care for, or take notice of, very small or trifling matters. Black’s Law Dictionary 388 (5th ed.1979).
. Delegate Lipscomb Norvell proposed an article with no eligibility requirements for the justices of the supreme court. See Journal of the Constitutional Convention of the State of Texas 95 (Sept. 14, 1875). Delegate Stillwell H. Russell proposed the requirement that district judges "shall have attained the age of thirty-five years, and shall have been a licensed practicing lawyer in this State for the ten years next preceding his said election." Id. at 102. The Committee on Judiciary adopted these two requirements, each modified by the time of the election for supreme court justices and suggested a proposal including the requirement that "[e]ach of said justices at the time of his election shall be a citizen of the United States. ...” Id. at 407. The Committee on Judiciary also proposed an experience requirement of seven years. Id. at 407. Delegate John Reagan, joined by Delegates P.R. Scott, C.B. Kilgore and Marion Martin, also of the Committee on Judiciary, proposed an alternative version, eventually accepted by the convention delegates, which combined the three eligibility requirements:
No [person] shall be eligible to the office of Chief Justice or Associate Justice of the Supreme Court unless he be, at the time of his election, a citizen of the United States and of this State, and unless he shall have attained the age of thirty years, and shall have been a practicing lawyer, or a judge of a court in this State, or such lawyer and judge together, at least seven years.
Id. at 418. See Tex. Const. art. V, § 2 (1876). Each of the subsequent proposals, defeated for other reasons, also contained language providing that the three requirements had to be satisfied “at the time of [the] election." See Journal of the Constitutional Convention of the State of Texas, at 563 (proposal of Delegate George McCormick); Id. at 564 (proposal of Delegate J.W. Whitfield). None of the proposals suggested that only one of the three requirements was to be satisfied at the time of election. Indeed, one suggested amendment proposing the deletion of the words
and unless he shall have attained the age of thirty years, and have been a practicing lawyer or a judge of a District Court in the State, or such lawyer and judge together, for at least seven years
Id. at 647 (proposal of Delegate Norvell) was defeated. To argue that the delegates intended to have the phrase "at the time of his election” modify only the first requirement is to ignore each proposal made to the Committee on Judiciary, article IV, section 2 of the 1866 constitution, which was the forerunner of the 1876 provision and the other proposals at the convention.
. We refuse to ignore clear evidence of constitutional intent in favor of technical rules of gram *252 mar. As we stated in Lemp v. Armengol, 86 Tex. 690 , 26 S.W. 941, 942 (1894), "[construction based upon grammatical niceties are not favored, even in interpreting constitutions and statutes, which are presumed to be drawn with great solemnity and care. It is doubtful if a rule of syntax in reference to the position of words or clauses in a sentence ought ever to have a controlling effect save as a last resort.” In Lo-Vaca Gathering Co. v. Missouri-Kansas-Tex. R.R. Co., 476 S.W.2d 732, 737 (Tex.Civ.App.—Austin 1972, writ refd n.r.e.), the court stated "[t]he courts are not called upon to judge the meaning and effect of a statute by the rules alone of the arbiters of grammar, who themselves are not always in agreement and are aligned today in several schools of thought. The courts are empowered to determine issues of law, but not the rules of syntax.”
“The rule has long prevailed in this State that constitutional provisions should not be given a technical construction which would defeat their purpose." Cramer v. Sheppard, 140 Tex. 271 , 167 S.W.2d 147, 154 (1942). The delegates gave no indication whatsoever that they intended one of the three requirements to apply at the time of the election and the other two to apply at the time of taking office. Indeed, the convention proceedings suggest the converse.
. Among other changes, the 1891 amendment increased the salary of the justices, lengthened their term to six years and "changed the provision requiring members of the court to have been ‘a practicing lawyer or a judge of a court in this state’, by omitting the words 'in this state’ ...” Tex. Const. art. V, § 2, Historical Note 17 (Vernon 1955).
The 1945 amendment included such changes as increasing the court's size from three justices to nine, increasing “the age of eligibility from thirty to thirty-five years, and the length of time as a practicing lawyer or judge of a court, or both, from seven to ten years ...” Id.
The 1981 amendment changed "associate justices” to "justices” and made the provision gender neutral. See Tex. Const. art. V, § 2 (Amended Nov. 4, 1980, eff. Sept. 1, 1981) (Vernon Supp.1990).
. In 1958, when Purcell was decided, article V, section 4 provided, in part, that "[sjaid Judges [of the Court of Criminal Appeals] shall have the same qualifications and receive the same salaries as the Judges of the Supreme Court.” See Tex. Const. art. V, § 4 (Vernon 1955).
. Section 172.058(a) of the Texas Election Code currently provides:
If a candidate who has made an application for a place on the general primary election ballot that complies with the applicable requirements dies or is declared ineligible after the 62nd day before general primary election day, the candidate’s name shall be placed on the ballot and the votes cast for the candidate shall be counted and entered on the official election returns in the same manner as for other candidates.
TEX.ELEC.CODE § 172.058 (Vernon Supp.1990). The Legislature last substantively amended § 172.058 in 1986 to change the time limitation for removing an ineligible candidate from 65 to 62 days before the primary election. Amended by Acts 1986, 69th Leg., 3rd C.S., ch. 14, § 16, eff. Sept. 1, 1987. In 1988, the Legislature advanced the date of the party primaries from May to March. However, no corresponding change was made to § 172.058(a). As a result, the courts are limited in exercising a role concerning candidate eligibility. For example, under TEX.ELEC.CODE § 172.029(c) (Vernon 1986), party chairs are required to certify their party’s candidates not later than the 10th day after the filing deadline. This year that certification deadline fell on January 12. The 62nd day before the March 13 general primary, provided by Section 172.058, was January 10. Thus, by the time McCorkle, an ineligible candidate, was certified by his party chair, the court had no power to order that his name be removed. If the Legislature desires to afford a judicial remedy to remove ineligible candidates from the primary ballot after certification, it will need to enact corrective legislation.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9762594. Public record. Not legal advice.